Economic and Financial Crimes Commission (EFCC) has filed an appeal, challenging judgment of Justice Nicholas Oweibo of the Federal High Court, Ikoyi, Lagos, that struck out its suit seeking forfeiture of 14 properties and N400 million linked to Kogi State Governor Yahaya Bello on ground of his immunity from prosecution under the 1999 Constitution (as amended).

In the notice of appeal filed yesterday, the anti-graft agency averred that Justice Oweibo erred in law when he struck out the suit, arguing that the immunity conferred on the respondent against civil or criminal proceedings during his incumbency as a governor does not extend to properties reasonably suspected to be proceeds of crime.

EFCC stressed that the court erred, adding that the ruling amounted to miscarriage of justice, “when it refused to bind itself with the decision of the Court of Appeal in EFCC V Fayose (2018) LPELR 44131 CA and the decision of the Supreme Court in Fawehinmi V IGP (2002) 7 NWLR (PT767) 606, on the proper interpretation of Section 308 of the 1999 Constitution (as amended).”

The applicant noted that the court erred in law when it dismissed a preservation order of properties reasonably suspected to have been derived from proceeds of unlawful activities notwithstanding its findings that the respondent failed to show “genuine origin of funds used to acquire the properties under the preservation order.”

Justice Oweibo had, on Wednesday, February 22, 2023, granted an interim forfeiture of the properties in Lagos, Abuja and the United Arab Emirates, and also ordered preservation of N400 million recovered from one Aminu Falala, which “is reasonably suspected to have been derived from unlawful activity and intended to be used for acquisition of Plot No. 1224 Bishop Oluwole Street, Victoria Island, Lagos.”

Moving the application, counsel to EFCC, Rotimi Oyedepo, had stated that the properties, including “Hotel Apartment Community, Burj Khalifa lying, being and situate at Plot 160 Municipality No. 345-7562, Sky View Building No. 1, Property No. 401, Floor 4, Dubai UAE,” were reasonably suspected to have been derived from unlawful activity.

In his ruling, Justice Oweibo had granted the application, as prayed, and also directed the commission to publish the interim order within 14 days in any national newspaper, before adjourning to March 28.

During the proceedings on March 28, Oyedepo had informed the court that EFCC received a notice of intention to oppose making of the preservation order, which it had equally responded to.

Responding, Bello, in an application through his counsel, Abdulwahab Mohammed, had sought to vacate the order on the grounds that most of the properties sought to be forfeited were acquired by him before assuming the governorship of Kogi State.

Oyedepo, in opposition to the application, drew the attention of the court to the fact that the applicant failed to respond to the depositions in the counter-affidavit.

He had said: “In Usman against Garke, it was reported in 2003, LPLR 3431, Supreme Court and our submission is that failure to reply to the counter-affidavit has a single legal consequence that the despondent is agreeing to the application. We urge your lordship to hold that the failure to respond is deemed admitted.

“It is our submission that, where a statute describes a mode of doing a thing, it is that mode that must be followed.

“We have cited authorities to this effect, one of which is Patience Jonathan and the FGN, in paragraph 1.08 of our submission. The Proceeds of Crime (Recovery and Management) Act, 2022 prescribes the mode of challenging the preservation order of the court and the steps to be taken by the party challenging the making of the preservation order.”

Oyedepo had also submitted that one of the requirements that the application challenging a preservation order must contain is that the applicant must show his interest in the properties concerned.

In his further submissions, he had said: “Apart from Paragraph 4H and I of the affidavit in support of the notice of intention, there is nothing before this honourable court showing, by way of credible evidence, how the properties were acquired.

“In our counter-affidavit, we have established how the properties were acquired and there is nothing challenging how the properties were acquired.

“What was deposed is that most of the properties were got before he became governor of Kogi State and the properties were not acquired through illegal means.

“Without establishing the interest of the applicant, the application is bound to fail. And having failed to show how the properties were acquired, the next thing the applicant sought to do was to tell the court that the prosecution had failed several court orders.”

In response to the immunity clause as contained in Section 308, Oyedepo had said: “The provision of Section 308 will not and cannot be construed to a ridiculous extent of preventing the state from investigating the beneficiary of the section.

“As far back as 2002, in the case of Fawehinmi and IGP, the court mentioned that a person protected under Section 308 can be investigated, and the fact that someone is under immunity does not prevent the state from investigating.

“Where a state governor is reasonably suspected to have committed a financial crime, the state can investigate for evidence that will be used in prosecution when he no longer enjoys the immunity.”